ronald j. tenpas assistant attorney general …...ronald j. tenpas assistant attorney general...
TRANSCRIPT
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RONALD J. TENPAS Assistant Attorney General Environment and Natural Resources Division United States Department of Justice Washington, DC 20530
W. BENJAMIN FISHEROW Deputy Chief Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice P.O. Box 7611, Ben Franklin Station Washington, DC 20044-7611 Telephone: (202) 514-2750 E-mail: [email protected]
DIANE J. HUMETEWA United States Attorney
SUE A. KLEIN Assistant United States Attorney Arizona Bar no. 11253 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 Telephone: (602) 514-7500 E-mail: [email protected]
Attorneys for Plaintiff United States of America
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, ) )
Plaintiff, ) CIVIL ACTION NO.
v. ) ) 2:08-cv-1479-JAT
) SALT RIVER PROJECT AGRICULTURAL ) CONSENT DECREE IMPROVEMENT AND POWER DISTRICT )
) Defendant. )
)
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TABLE OF CONTENTS
I. JURISDICTION AND VENUE . . . . . . . . . . . . . . . . . . 5
II. APPLICABILITY . . . . . . . . . . . . . . . . . . . . . . 6
III. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 7
IV. NOx EMISSION REDUCTIONS AND CONTROLS . . . . . . . . . . 13
V. SO2 EMISSION REDUCTIONS AND CONTROLS . . . . . . . . . . 15
VI. PM EMISSION REDUCTIONS AND CONTROLS . . . . . . . . . . 21
VII. PROHIBITION ON NETTING CREDITS OR OFFSETS . . . . . . 26
VIII. ENVIRONMENTAL PROJECTS . . . . . . . . . . . . . . . . 27
IX. CIVIL PENALTY . . . . . . . . . . . . . . . . . . . . . 29
X. RESOLUTION OF PAST CIVIL CLAIMS . . . . . . . . . . . . . 30
XI. PERIODIC REPORTING . . . . . . . . . . . . . . . . . . . 30
XII. REVIEW AND APPROVAL OF SUBMITTALS . . . . . . . . . . . 33
XIII. STIPULATED PENALTIES . . . . . . . . . . . . . . . . . 33
XIV. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . 44
XV. DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . 47
XVI. PERMITS . . . . . . . . . . . . . . . . . . . . . . . . 49
XVII. INFORMATION COLLECTION AND RETENTION . . . . . . . . . 52
XVIII. NOTICES . . . . . . . . . . . . . . . . . . . . . . . 53
XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS . . . . . . . 55
XX. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . 56
XXI. RETENTION OF JURISDICTION . . . . . . . . . . . . . . . 56
XXII. MODIFICATION . . . . . . . . . . . . . . . . . . . . . 57
XXIII. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . 57
XXIV. SIGNATORIES AND SERVICE . . . . . . . . . . . . . . . 59
XXV. PUBLIC COMMENT . . . . . . . . . . . . . . . . . . . . . 60
XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT
DECREE . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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XXVII. FINAL JUDGMENT . . . . . . . . . . . . . . . . . . . 61
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WHEREAS, Plaintiff, the United States of America (“the
United States”), on behalf of the United States Environmental
Protection Agency (“EPA”) is concurrently filing a complaint for
injunctive relief and civil penalties pursuant to Sections
113(b)(2) and 167 of the Clean Air Act (the “Act”), 42 U.S.C.
§§ 7413(b)(2) and 7477, alleging that Defendant, Salt River
Project Agricultural Improvement and Power District (“SRP”) has
undertaken construction projects at a major emitting facility in
violation of the Prevention of Significant Deterioration (“PSD”)
provisions of Part C of Subchapter I of the Act, 42 U.S.C.
§§ 7470-7492, and in violation of the federally approved and
enforceable Arizona State Implementation Plan (“SIP”);
WHEREAS, in its complaint, the United States alleges, inter
alia, that SRP failed to obtain the necessary permits and install
the controls necessary under the Act to reduce sulfur dioxide
(“SO2”), oxides of nitrogen (“NOx”), and particulate matter
(“PM”), and that SRP failed to obtain an operating permit under
Title V of the Act that reflects applicable requirements imposed
under Part C of Subchapter I of the Act for its Coronado
Generating Station (“CGS”) located near St. Johns, Arizona;
WHEREAS, the complaint alleges claims upon which relief can
be granted against SRP under Sections 113 and 167 of the Act, 42
U.S.C. §§ 7413 and 7477;
WHEREAS, the United States provided SRP and the State of
Arizona actual notice of alleged violations in accordance with
Section 113(a)(1) and (b) of the Act, 42 U.S.C. § 7413(a)(1) and
(b);
WHEREAS, the United States and SRP (collectively, the
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“Parties”) have agreed that settlement of this action is in the
best interest of the Parties and in the public interest, and that
entry of this Consent Decree without further litigation is the
most appropriate means of resolving this matter;
WHEREAS, the Parties recognize, and the Court by entering
this Consent Decree finds, that this Consent Decree has been
negotiated in good faith and at arm’s length and that this
Consent Decree is fair, reasonable, consistent with the goals of
the Act, and in the public interest;
WHEREAS, SRP has cooperated in the resolution of this
matter;
WHEREAS, SRP denies the violations alleged in the complaint,
and nothing herein shall constitute an admission of liability;
WHEREAS, SRP maintains that its agreement in this Consent
Decree to install, correlate, maintain, and operate PM CEMS shall
not prevent SRP in any future proceedings from challenging the
relationship between the data generated from such PM CEMS,
including the averaging period for which such data is reported
pursuant to Paragraph 71, and the results of performance tests
for PM (e.g., Method 5, 5B, 5I, or 17); and
WHEREAS, the Parties have consented to entry of this Consent
Decree without trial of any issues;
NOW, THEREFORE, without any admission of fact or law, it is
hereby ORDERED, ADJUDGED, AND DECREED as follows:
I. JURISDICTION AND VENUE
1. This Court has jurisdiction over this action, the
subject matter herein, and the Parties consenting hereto,
pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367, and pursuant
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to Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477.
Venue is proper under Section 113(b) of the Act, 42 U.S.C.
§ 7413(b), and under 28 U.S.C. § 1391(b) and (c). Solely for the
purposes of this Consent Decree and the underlying complaint, and
for no other purpose, SRP waives all objections and defenses that
it may have to the Court’s jurisdiction over this action, to the
Court’s jurisdiction over SRP, and to venue in this district.
SRP consents to and shall not challenge entry of this Consent
Decree or this Court’s jurisdiction to enter and enforce this
Consent Decree. Except as expressly provided for herein, this
Consent Decree shall not create any rights in or obligations of
any party other than the Parties to this Consent Decree. Except
as provided in Section XXV (Public Comment) of this Consent
Decree, the Parties consent to entry of this Consent Decree
without further notice.
II. APPLICABILITY
2. Upon entry, the provisions of this Consent Decree shall
apply to and be binding upon the Parties, their successors and
assigns, and upon SRP’s directors, officers, employees, servants
and agents solely in their capacities as such.
3. SRP shall provide a copy of this Consent Decree to all
vendors, suppliers, consultants, contractors, agents, and any
other company or other organization retained to perform any of
the work required by this Consent Decree. Notwithstanding any
retention of contractors, subcontractors, or agents to perform
any work required under this Consent Decree, SRP shall be
responsible for ensuring that all work is performed in accordance
with the requirements of this Consent Decree. In any action to
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enforce this Consent Decree, SRP shall not assert as a defense
the failure of its officers, directors, employees, servants,
agents, or contractors to take actions necessary to comply with
this Consent Decree, unless it is determined to be a Force
Majeure Event as governed by Section XIV of this Consent Decree.
III. DEFINITIONS
4. Every term expressly defined by this Section shall have
the meaning given that term herein. Every other term used in
this Consent Decree that is also a term used under the Act or in
a federal regulation implementing the Act shall mean in this
Consent Decree what such term means under the Act or those
regulations.
5. A “30-Day Rolling Average NOx Emission Rate” for a Unit
shall be expressed in lb/mmBtu and calculated in accordance with
the following procedure: first, sum the total pounds of NOx
emitted from the Unit during the current Unit Operating Day and
the previous twenty-nine (29) Unit Operating Days; second, sum
the total heat input to the Unit in mmBtu during the current Unit
Operating Day and the previous twenty-nine (29) Unit Operating
Days; and third, divide the total number of pounds of NOx emitted
during the thirty (30) Unit Operating Days by the total heat
input during the thirty (30) Unit Operating Days. A new 30-Day
Rolling Average NOx Emission Rate shall be calculated for each
new Unit Operating Day. Each 30-Day Rolling Average NOx Emission
Rate shall include all emissions that occur during all periods
within any Unit Operating Day, including emissions from startup,
shutdown, and malfunction.
6. A “365-Day Plant-Wide Rolling NOx Tonnage Limitation”
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means the limitation, as specified in this Consent Decree, on the
total number of tons of NOx emitted from CGS Units 1 and 2 during
a 365-day period beginning on June 1, 2014, and continuing each
day thereafter, and shall include all emissions during startup,
shutdown, and malfunction, unless the malfunction is determined
to be a Force Majeure Event as defined in Section XIV.
7. A “30-Day Rolling Average SO2 Removal Efficiency” means
the percent reduction in the mass of SO2 achieved by a Unit’s FGD
system over a thirty (30) Unit Operating Day period and shall be
calculated as follows: step one, sum the total pounds of SO2
emitted as measured at the outlet of the FGD system for the Unit
during the current Unit Operating Day and the previous
twenty-nine (29) Unit Operating Days as measured at the outlet of
the FGD system for that Unit; step two, sum the total pounds of
SO2 delivered to the inlet of the FGD system for the Unit during
the current Unit Operating Day and the previous twenty-nine (29)
Unit Operating Days as measured at the inlet to the FGD system
for that Unit (this shall be calculated by measuring the ratio of
the lb/mmBtu SO2 inlet to the lb/mmBtu SO2 outlet and multiplying
the outlet pounds of SO2 by that ratio); step three, subtract the
outlet SO2 emissions calculated in step one from the inlet SO2
emissions calculated in step two; step four, divide the remainder
calculated in step three by the inlet SO2 emissions calculated in
step two; and step five, multiply the quotient calculated in step
four by 100 to express as a percentage of removal efficiency. A
new 30-day Rolling Average SO2 Removal Efficiency shall be
calculated for each new Unit Operating Day, and shall include all
emissions that occur during all periods within each Unit
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Operating Day, including emissions from startup, shutdown, and
malfunction.
8. A “30-Day Rolling Average SO2 Emission Rate” for a Unit
shall be expressed in lb/mmBtu and calculated in accordance with
the following procedure: first, sum the total pounds of SO2
emitted from the Unit during the current Unit Operating Day and
the previous twenty-nine (29) Unit Operating Days; second, sum
the total heat input to the Unit in mmBtu during the current Unit
Operating Day and the previous twenty-nine (29) Unit Operating
Days; and third, divide the total number of pounds of SO2 emitted
during the thirty (30) Unit Operating Days by the total heat
input during the thirty (30) Unit Operating Days. A new 30-Day
Rolling Average SO2 Emission Rate shall be calculated for each
new Unit Operating Day. Each 30-Day Rolling Average SO2 Emission
Rate shall include all emissions that occur during all periods
within any Unit Operating Day, including emissions from startup,
shutdown, and malfunction.
9. “Affirmative Defense,” as used in this Consent Decree,
means the Affirmative Defense approved by EPA into the Arizona
SIP Rule 18-2-310, “Affirmative Defenses for Excess Emissions Due
to Malfunction, Startup, and Shutdown,” which provides an owner
or operator of a source an Affirmative Defense in a civil or
administrative action, other than a judicial action for
injunctive relief, if the owner or operator of the source has
emissions in excess of an applicable emission limitation due to
malfunction, startup, or shutdown, has complied with the
reporting requirements of Rule 18-2-310.01, and satisfies
additional requirements of Rule 18-2-310.
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10. “Arizona DEQ” means the Arizona Department of
Environmental Quality.
11. “Arizona SIP” means the Arizona State Implementation
Plan, and any amendments thereto, as approved by EPA pursuant to
Section 110 of the Act, 42 U.S.C. § 7410.
12. “CEMS” or “Continuous Emission Monitoring System,”
means, for obligations involving the monitoring of NOx and SO2
emissions under this Consent Decree, the devices defined in 40
C.F.R. § 72.2, the inlet SO2 lb/mmBtu monitors, and the computer
system for recording, calculating, and storing data and equations
required by this Consent Decree.
13. “CGS” means SRP’s Coronado Generating Station
consisting of two Riley turbo-fired boilers (designated as Unit 1
and Unit 2) and related equipment, which is located near St.
Johns, Arizona.
14. “Clean Air Act” or “Act” means the federal Clean Air
Act, 42 U.S.C. §§ 7401-7671q, and its implementing regulations.
15. “Consent Decree” means this Consent Decree and the
Appendix hereto, which is incorporated into the Consent Decree.
16. “Day” means calendar day unless otherwise specified in
this Consent Decree.
17. “Electrostatic Precipitator” or “ESP” means a device
for removing particulate matter from combustion gases by
imparting an electric charge to the particles and then attracting
them to a metal plate or screen of opposite charge before the
combustion gases are exhausted to the atmosphere.
18. “Emission Rate” for a given pollutant means the number
of pounds of that pollutant emitted per million British thermal
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units of heat input (lb/mmBtu), measured in accordance with this
Consent Decree.
19. “EPA” means the United States Environmental Protection
Agency.
20. “Flue Gas Desulfurization System” or “FGD” means a
pollution control device that employs flue gas desulfurization
technology, including an absorber utilizing lime, fly ash, or
limestone slurry, for the reduction of sulfur dioxide emissions.
21. “Fossil Fuel” means any hydrocarbon fuel, including
coal, petroleum coke, petroleum oil, or natural gas.
22. “lb/mmBtu” means one pound of a pollutant per million
British thermal units of heat input.
23. “Low NOx Combustion System” means burners and
associated combustion air control equipment, including overfire
air, for combusting pulverized coal, which control mixing
characteristics of the pulverized coal and oxygen, lower the
combustion rate, lower oxygen concentration and heat temperature
during the initial phase of combustion, and thereby restrain the
formation of NOx created by both the nitrogen content of the
pulverized coal and by heat.
24. “Netting” shall mean the process of determining whether
a particular physical change or change in the method of operation
of a major stationary source results in a net emissions increase,
as that term is defined at 40 C.F.R. § 52.21(b)(3)(i) and at
Section R9-3-101 of the Arizona SIP.
25. “NOx” means oxides of nitrogen, measured in accordance
with the provisions of this Consent Decree.
26. “Ownership Interest” means part or all of SRP’s legal
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or equitable ownership interest in CGS.
27. “Parties” means the United States of America on behalf
of EPA and SRP. “Party” means one of the named “Parties.”
28. “PM” means total filterable particulate matter,
measured in accordance with the provisions of this Consent
Decree.
29. “PM CEMS” or “PM Continuous Emission Monitoring System”
means, for obligations involving the monitoring of PM emissions
under this Consent Decree, the equipment that samples, analyzes,
measures, and provides, by readings taken at frequent intervals,
an electronic and/or paper record of PM emissions.
30. “Prevention of Significant Deterioration” or “PSD”
means the prevention of significant deterioration of air quality
program under Part C of Subchapter I of the Clean Air Act, 42
U.S.C. §§ 7470 - 7492, and 40 C.F.R. § 52.21. It also includes
the prevention of significant deterioration of air quality
program as approved into the Arizona SIP, Arizona Administrative
Code R9-3-101, R9-3-301, R9-3-304, and R9-3-305.
31. “Project Dollars” means SRP’s expenditures and payments
incurred or made in carrying out the Environmental Projects
identified in Section VIII (Environmental Projects) of this
Consent Decree to the extent that such expenditures or payments
both: (a) comply with the requirements set forth in Section VIII
and Appendix A of this Consent Decree, and (b) constitute SRP’s
direct payments for such projects, or SRP’s external costs for
contractors, vendors, and equipment.
32. “Removal Efficiency” for a given pollutant means the
percentage of that pollutant removed by the applicable emission
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control device, measured in accordance with the provisions of
this Consent Decree.
33. “SCR” means a pollution control device for reducing NOx
emissions through the use of selective catalytic reduction
technology.
34. “SO2” means sulfur dioxide, measured in accordance with
the provisions of this Consent Decree.
35. “SO2 Allowance” means “allowance” of SO2 as defined at
42 U.S.C. § 7651a(3): “an authorization, allocated to an
affected Unit by the Administrator of EPA under Subchapter IV of
the Act, to emit, during or after a specified calendar year, one
ton of sulfur dioxide.”
36. “State” means the State of Arizona.
37. “Super-Compliant SO2 Allowance” means an SO2 Allowance
attributable to reductions beyond the requirements of this
Consent Decree.
38. “Title V Permit” means the permit required of SRP’s CGS
under Subchapter V of the Act, 42 U.S.C. §§ 7661-7661e.
39. “Unit” means CGS Unit 1 or Unit 2.
40. “Unit Operating Day” means, for Unit 1, any calendar
day on which Unit 1 fires fossil fuel, and, for Unit 2, any
calendar day on which Unit 2 fires fossil fuel.
IV. NOx EMISSION REDUCTIONS AND CONTROLS
A. NOx Emission Controls
1. Low-NOx Combustion System Installation and Performance
Requirements
41. SRP shall install a Low NOx Combustion System on one
Unit no later than June 1, 2009 and on the other Unit by no later
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than June 1, 2011. Commencing on the earlier of ninety (90) Unit
Operating Days or one hundred eighty (180) calendar days after
the Low NOx Combustion System installation date and continuing
thereafter, each Unit shall achieve and maintain a 30-Day Rolling
Average NOx Emission Rate of no greater than 0.320 lb/mmBtu.
2. SCR Installation and Performance Requirements
42. SRP shall install an SCR on one Unit no later than June
1, 2014. Beginning on June 1, 2014, and continuing thereafter,
SRP shall commence continuous operation of the SCR installed on
that Unit so as to achieve and maintain a 30-Day Rolling Average
NOx Emission Rate of no greater than 0.080 lb/mmBtu.
3. Continuous Operation of NOx Controls
43. SRP shall continuously operate each NOx control covered
under this Consent Decree at all times that the Unit it serves is
in operation, consistent with the technological limitations,
manufacturers’ specifications, and good engineering and
maintenance practices for minimizing emissions to the extent
practicable.
4. 365-Day Plant-Wide Rolling NOx Tonnage Limitation
44. Beginning on June 1, 2014, and continuing thereafter,
SRP shall not exceed a 365-Day Plant-Wide Rolling NOx Tonnage
Limitation at CGS Units 1 and 2 of 7,300 tons.
5. Monitoring of NOx Emissions
A. 30-Day Rolling Average NOx Emission Rate
45. In determining the 30-Day Rolling Average NOx Emission
Rate, SRP shall use CEMS in accordance with the procedures of 40
C.F.R. Part 75, except that: (1) NOx emissions data need not be
bias adjusted, (2) for any CEMS with a span less than 100 parts
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per million (“ppm”), the calibration drift and out-of-control
criteria in Procedure 1, section 4.3 of Part 60, Appendix F shall
apply in lieu of the low emitter specifications in Part 75,
Appendix B, section 2.1, (3) for any CEMS with a span less than
or equal to 30 ppm the exemption from the Part 75 linearity check
will not apply and either the Part 75 linearity check or the
cylinder gas audit described in Procedure 1, section 5.1.2 of
Part 60, Appendix F shall be performed on a quarterly basis, and
(4) for the Unit controlled by SCR, an annual relative accuracy
test audit shall meet, at a minimum, a relative accuracy of less
than 20% or an accuracy of less than 0.016 lb/mmBtu (expressed as
the difference between the monitor mean and the reference value
mean).
B. 365-Day Plant-Wide Rolling NOx Tonnage Limitation
46. For purposes of calculating the 365-day Plant-Wide
Rolling NOx Tonnage Limitation, SRP shall use CEMS in accordance
with the procedures specified in 40 C.F.R. Part 75.
V. SO2 EMISSION REDUCTIONS AND CONTROLS
A. Best Management Practices for Existing SO2 Controls
47. Beginning thirty (30) days after entry of this Consent
Decree, SRP shall continuously operate and maintain, to the
maximum extent practicable, its existing FGDs on CGS Unit 1 and
Unit 2 in a manner consistent with good engineering and
maintenance practices for minimizing SO2 emissions.
B. SO2 Emission Controls
1. New FGD Installations at First Unit
48. SRP shall install a new FGD on one Unit no later than
January 1, 2012. Beginning on January 1, 2012, and continuing
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thereafter, SRP shall commence continuous operation of the FGD so
as to achieve and maintain a 30-Day Rolling Average SO2 Removal
Efficiency at this Unit of at least 95.0% or a 30-Day Rolling
Average SO2 Emissions Rate of no greater than 0.080 lb/mmBtu.
2. New FGD Installation at Second Unit
49. SRP shall install a new FGD on the Unit not selected
pursuant to Paragraph 48 no later than January 1, 2013.
Beginning on January 1, 2013, and continuing thereafter, SRP
shall commence continuous operation of the FGD so as to achieve
and maintain a 30-Day Rolling Average SO2 Removal Efficiency at
this second Unit of at least 95.0% or a 30-Day Rolling Average
SO2 Emissions Rate of no greater than 0.080 lb/mmBtu.
3. Continuous Operation of SO2 Controls
50. SRP shall continuously operate each FGD covered under
this Consent Decree at all times that the Unit it serves is in
operation, consistent with the technological limitations,
manufacturers’ specifications, and good engineering and
maintenance practices for the FGDs for minimizing emissions to
the extent practicable.
C. Surrender of SO2 Allowances
51. For purposes of this Subsection, “surrender” means,
with regard to SO2 Allowances, permanently surrendering so that
such SO2 Allowances can never be used to meet any compliance
requirement under the Clean Air Act or the Arizona SIP.
52. Except as provided in Paragraph 59, SRP shall not sell,
trade, or transfer any SO2 Allowances allocated to CGS that would
otherwise be available for sale, trade, or transfer as a result
of the actions taken by SRP to comply with the requirements of
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this Consent Decree.
53. Beginning with calendar year 2012, SRP shall surrender
to EPA, or transfer to a non-profit third party selected by SRP
for purposes of surrender, all SO2 Allowances that have been
allocated to CGS in excess of the amount needed to meet its own
federal and/or State Clean Air Act regulatory requirements at CGS
and Springerville Unit 4, which is located at the Springerville
Generating Station.
54. If SRP commences operation of one or more new coal-
fired units that it owns in whole or in part, as further
described in this Paragraph, in the Western Electricity
Coordinating Council Region no earlier than five (5) years and no
later than fourteen (14) years from the date this Consent Decree
is entered by this Court, then SRP may also use SO2 Allowances,
as limited by this Paragraph, allocated to CGS to meet the
federal and/or state Clean Air Act regulatory requirements for
certain SO2 emissions from such new coal-fired unit(s). SRP may
only use such SO2 Allowances pursuant to this Paragraph if such
new coal-fired unit(s) is equipped with the Best Available
Control Technology (if the new coal-fired unit(s) will be
emitting any of the pollutants set forth at 40 C.F.R.
§ 52.21(b)(50) and the new coal-fired unit(s) will be located in
an attainment area for those pollutants) and/or the Lowest
Achievable Emission Rate (if the new coal-fired unit(s) will be
emitting any of the pollutants set forth at 40 C.F.R.
§ 51.165(a)(xxxvii) and the new coal-fired unit(s) will be
located in a nonattainment area for those pollutants). SRP may
only use SO2 Allowances for the SO2 emissions associated with a
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total of 400 megawatts (MW) that it owns at such new coal-fired
unit(s), whether at one new coal-fired unit (e.g., SRP owns a
total of at least 400 MW at one new coal-fired unit) or in the
aggregate at multiple new coal-fired units (e.g., SRP owns 100 MW
at four new coal-fired units for an aggregate total of 400 MW).
To determine the number of SO2 Allowances SRP may use pursuant to
this Paragraph, SRP may use no more than that number of SO2
Allowances that cover the same percentage of total SO2 emissions
from such new coal-fired unit(s) as the percentage of SRP’s
ownership in such new coal-fired unit(s), on a MW basis. Thus,
for example, if SRP owns 400 MW of a new 800 MW coal-fired unit
that otherwise meets the requirements of this Paragraph, SRP may
use excess SO2 Allowances allocated to CGS to cover no more than
fifty (50) percent of the total SO2 emissions from such new coal-
fired unit. This reduction in the amount of SO2 Allowances
surrendered by or on behalf of SRP would start with the year this
new Unit(s) commences operation.
55. SRP shall make its surrender of SO2 Allowances
annually, within forty-five (45) days of its receipt from EPA of
the Annual Deduction Reports for SO2. Any surrender need not
include the specific SO2 Allowances that were allocated to CGS,
so long as SRP surrenders SO2 Allowances that are from the same
year and that are equal to the number required to be surrendered
under this Subsection.
56. If any SO2 Allowances are transferred directly to a
non-profit third party for surrender to EPA, SRP shall include a
description of such transfer in the next report submitted to EPA
pursuant to Section XI (Periodic Reporting) of this Consent
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Decree. Such report shall: (i) provide the identity of the
non-profit third-party recipient(s) of the SO2 Allowances and a
listing of the serial numbers of the transferred SO2 Allowances;
and (ii) include a certification by the non-profit third-party
recipient(s) stating that the recipient(s) will not sell, trade,
or otherwise exchange any of the SO2 Allowances and will not use
any of the SO2 Allowances to meet any obligation imposed by any
environmental law. No later than the third periodic report due
after the transfer of any SO2 Allowances, SRP shall include a
statement that the non-profit third-party recipient(s)
surrendered the SO2 Allowances for permanent surrender to EPA in
accordance with the provisions of Paragraph 57 within one (1)
year after SRP transferred the SO2 Allowances to them. SRP shall
not have complied with the SO2 Allowance surrender requirements
of this Subsection until all non-profit third-party recipient(s)
shall have actually surrendered the transferred SO2 Allowances to
EPA.
57. For all SO2 Allowances surrendered to EPA, SRP or the
non-profit third-party recipient(s) (as the case may be) shall
first submit an SO2 Allowance transfer request form to EPA’s
Office of Air and Radiation’s Clean Air Markets Division
directing the transfer of such SO2 Allowances to the EPA
Enforcement Surrender Account or to any other EPA account that
EPA may direct in writing. As part of submitting these transfer
requests, SRP or the non-profit third-party recipient(s) shall
irrevocably authorize the transfer of these SO2 Allowances and
identify – by name of account and any applicable serial or other
identification numbers or station names – the source and location
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of the SO2 Allowances being surrendered.
D. Monitoring of SO2 Emissions
58. In determining the 30-Day Rolling Average SO2 Emission
Rate and the 30-Day Rolling Average SO2 Removal Efficiency, SRP
shall use CEMS in accordance with the procedures of 40 C.F.R.
Part 75, except that: (1) SO2 emissions data need not be bias
adjusted; (2) inlet pounds of SO2 will be calculated as described
in Paragraph 7 in lieu of installing an inlet flow monitor, (3)
on any CEMS with a span less than 100 ppm, the calibration drift
and out-of-control criteria in Procedure 1, section 4.3 of Part
60, Appendix F shall apply in lieu of the low emitter
specifications in Part 75, Appendix B, section 2.1, (4) on any
CEMS with a span less than or equal to 30 ppm the exemption from
the Part 75 linearity check will not apply and either the Part 75
linearity check or the cylinder gas audit described in Procedure
1, section 5.1.2 of Part 60, Appendix F shall be performed on a
quarterly basis, and (5) an annual relative accuracy test audit
shall meet, at a minimum, a relative accuracy of less than 20% or
an accuracy of less than 0.016 lb/mmBtu (expressed as the
difference between the monitor mean and the reference value
mean).
E. General SO2 Provisions
59. Provided that SRP is in compliance with all SO2
emission limitations established in this Consent Decree, nothing
in this Consent Decree shall preclude SRP from using, selling, or
transferring Super-Compliant SO2 Allowances that may arise as a
result of achieving and maintaining SO2 emission rates or removal
efficiencies at Unit 1 and Unit 2 below the emission limits
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required in this Consent Decree, so long as SRP timely reports
the generation of such Super-Compliant SO2 Allowances in
accordance with Section XI (Periodic Reporting) of this Consent
Decree.
60. SRP shall not use SO2 Allowances to comply with any
requirement of this Consent Decree, including by claiming
compliance with any emission limitation required by this Consent
Decree by using, tendering, or otherwise applying SO2 Allowances
to offset any excess emissions (i.e., emissions above the limits
specified in Paragraphs 48 and 49).
61. Nothing in this Consent Decree shall prevent SRP from
purchasing or otherwise obtaining SO2 Allowances from another
source for purposes of complying with state or federal Clean Air
Act requirements to the extent otherwise allowed by law.
62. The requirements in Paragraphs 52 through 57 and 59 of
this Consent Decree pertaining to SRP’s surrender of SO2
Allowances are permanent injunctions not subject to any
termination provision of this Consent Decree.
VI. PM EMISSION REDUCTIONS AND CONTROLS
A. Optimization of Existing ESPs
63. Beginning thirty (30) days after entry of this Consent
Decree, and continuing thereafter, SRP shall operate each ESP on
each Unit at CGS at all times when the Unit is in operation to
maximize PM emission reductions, provided that such operation of
the ESP is consistent with the technological limitations,
manufacturers’ specifications and good engineering and
maintenance practices for the ESP. Except as required during
correlation testing under 40 C.F.R. Part 60, Appendix B,
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Performance Specification 11, and Quality Assurance Requirements
under Appendix F, Procedure 2, as required by this Consent
Decree, SRP shall, at a minimum, to the extent reasonably
practicable: (a) fully energize each section of the ESP for each
unit, and repair any failed ESP section at the next planned or
unplanned Unit outage of sufficient length; (b) operate automatic
control systems on each ESP to maximize PM collection efficiency;
(c) maintain power levels delivered to the ESPs, consistent with
manufacturers’ specifications, the operational design of the
Unit, and good engineering practices; (d) inspect for and repair
during the next planned or unplanned Unit outage of sufficient
length any openings in ESP casings, ductwork and expansion joints
to minimize air leakage; and (e) optimize the plate-cleaning and
discharge-electrode-cleaning systems for the ESPs at each Unit by
varying the cycle time, cycle frequency, rapper-vibrator
intensity, and number of strikes per cleaning event.
B. PM Emission Rate and Monitoring Requirements
64. Upon installation and commencement of operation of a
FGD system for a Unit as required by Paragraphs 48 and 49, and
continuing thereafter, that Unit shall achieve and maintain a PM
Emission Rate no greater than 0.030 lb/mmBtu.
65. Within one hundred eighty (180) days after each date
established by this Consent Decree for SRP to achieve and
maintain a PM Emission Rate, and continuing annually thereafter,
SRP shall conduct a stack test for PM. To determine compliance
with the PM Emission Rate established in Paragraph 64, SRP shall
use the reference methods and procedures (filterable portion
only) specified in 40 C.F.R. Part 60, App. A-3, Method 5, Method
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5B, or Method 5I, App. A-6, Method 17, or alternative stack tests
or methods that are requested by SRP and approved by EPA and
Arizona DEQ. Each test shall consist of three separate runs
performed under representative operating conditions not including
periods of startup, shutdown, or malfunction. The sampling time
for each run shall be at least 120 minutes and the volume of each
run shall be 1.70 dry standard cubic meters (60 dry standard
cubic feet). SRP shall calculate the PM Emission Rate from the
stack test results in accordance with 40 C.F.R. § 60.8(f). The
results of each PM stack test shall be submitted to EPA and
Arizona DEQ within forty-five (45) days of completion of each
test.
66. When SRP submits the application for amendment to its
Title V permit pursuant to Paragraph 134, that application shall
include a Compliance Assurance Monitoring (“CAM”) plan, under 40
C.F.R. Part 64, for the PM Emission Rate in Paragraph 64. The PM
CEMS required under Paragraph 67 may be used in that CAM plan.
C. PM CEMS
67. SRP shall install, correlate, maintain, and operate PM
CEMS on Unit 1 and Unit 2 as specified below. The PM CEMS shall
comprise a continuous particle mass monitor measuring particulate
matter concentration, directly or indirectly, on an hourly
average basis and a diluent monitor used to convert the
concentration to units expressed in lb/mmBtu. The PM CEMS
installed at each Unit must be appropriate for the anticipated
stack conditions and capable of measuring PM concentrations on an
hourly average basis. SRP shall maintain, in an electronic
database, the hourly average emission values of all PM CEMS in
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lb/mmBtu. Except for periods of monitor malfunction, maintenance,
or repair, SRP shall continuously operate the PM CEMS at all
times when the Unit it serves is operating.
68. No later than January 1, 2010, SRP shall submit to EPA
and Arizona DEQ for review and approval pursuant to Section XII
(Review and Approval of Submittals) of this Consent Decree a plan
for the installation and correlation of the PM CEMS for Unit 1
and Unit 2.
69. No later than one hundred twenty (120) days prior to
the deadline to commence operation of the PM CEMS as set forth in
Paragraph 71, SRP shall submit to EPA and Arizona DEQ for review
and approval pursuant to Section XII (Review and Approval of
Submittals) of this Consent Decree a proposed Quality
Assurance/Quality Control (“QA/QC”) protocol that shall be
followed for such PM CEMS.
70. In developing both the plan for installation and
correlation of the PM CEMS and the QA/QC protocol, SRP shall use
the criteria set forth in 40 C.F.R. Part 60, Appendix B,
Performance Specification 11, and Appendix F, Procedure 2.
Following EPA’s and Arizona DEQ’s approval of the plan described
in Paragraph 68 and the QA/QC protocol described in Paragraph 69,
SRP shall thereafter operate the PM CEMS in accordance with the
approved plan and QA/QC protocol.
71. Within one hundred eighty (180) calendar days following
commencement of operation of each FGD, SRP shall install,
correlate, maintain, and operate a PM CEMS on the Unit being
controlled by the new FGD, conduct performance specification
tests on that PM CEMS, and demonstrate compliance with the PM
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CEMS installation and correlation plan submitted to and approved
by EPA and Arizona DEQ in accordance with Paragraphs 68 and 69.
SRP shall report, pursuant to Section XI (Periodic Reporting),
the data recorded by the PM CEMS, expressed in lb/mmBtu on a
rolling average 3-hour, 6-hour, 24-hour, 30-day, and 365-day
basis in electronic format to EPA and Arizona DEQ and identify in
the report any PM concentrations measured by the PM CEMS that are
greater than 125% of the highest PM concentration level used in
the most recent correlation testing performed pursuant to
Performance Specification 11.
72. SRP shall operate the PM CEMS for at least two (2)
years. If, after two (2) years of operation, SRP believes that
it is infeasible to continue operation of the PM CEMS, SRP may
submit a demonstration of infeasibility to EPA. As part of that
demonstration, SRP shall submit an alternative PM monitoring plan
for review and approval by EPA. If EPA disapproves the
alternative monitoring plan, or if EPA rejects SRP’s assertion
that it is infeasible to continue operating the PM CEMS, such
disagreement is subject to dispute resolution as specified in
this Consent Decree.
73. Operation of a PM CEMS shall be considered “infeasible”
if, by way of example, the PM CEMS: (a) cannot be kept in proper
condition for sufficient periods of time to produce reliable,
adequate, or useful data; or (b) SRP demonstrates that recurring,
chronic, or unusual equipment adjustment or servicing needs in
relation to other types of continuous emission monitors cannot be
resolved through reasonable expenditures of resources; or (c)
chronic and difficult operational issues at Unit 1 or Unit 2
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cannot be resolved through reasonable expenditure of resources;
or (d) the data produced by the CEMS cannot be used to assess PM
emissions from Unit 1 or Unit 2 or performance of that Unit’s
control devices. If EPA determines that SRP has demonstrated
infeasibility pursuant to this Paragraph, SRP shall be entitled
to discontinue operation of and remove the PM CEMS.
D. General PM Provisions
74. Although stack testing shall be used to determine
compliance with the PM Emission Rate established by this Consent
Decree, data from PM CEMS shall be used, at a minimum, to monitor
progress in reducing PM emissions.
75. Nothing in this Consent Decree is intended to, or
shall, alter or waive any applicable law (including but not
limited to any defenses, entitlements, challenges, or
clarifications related to the Credible Evidence Rule, 62 Fed.
Reg. 8314 (Feb. 24, 1997)) concerning the use of data for any
purpose under the Act.
VII. PROHIBITION ON NETTING CREDITS OR OFFSETS
76. Emission reductions at CGS that result from actions to
be taken by SRP after entry of this Consent Decree to comply with
the requirements of this Consent Decree shall not be considered
as a creditable contemporaneous emission decrease for the purpose
of obtaining a netting credit or offset under the Clean Air Act’s
Nonattainment New Source Review and PSD programs.
77. The limitations on the generation and use of netting
credits and offsets set forth in the previous Paragraph do not
apply to emission reductions achieved at CGS that are greater
than those required under this Consent Decree. For purposes of
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this Paragraph, emission reductions at CGS are greater than those
required under this Consent Decree if they result from CGS’s
compliance with federally-enforceable emission limits that are
more stringent than those limits imposed on CGS Unit 1 and Unit 2
under this Consent Decree and under applicable provisions of the
Clean Air Act or the Arizona SIP.
78. Nothing in this Consent Decree is intended to preclude
the emission reductions generated under this Consent Decree from
being considered by the State or EPA as creditable
contemporaneous emission decreases for the purpose of attainment
demonstrations submitted pursuant to § 110 of the Act, 42 U.S.C.
§ 7410, or in determining impacts on National Ambient Air Quality
Standards, PSD increment, or air quality related values,
including visibility, in a Class I area.
VIII. ENVIRONMENTAL PROJECTS
79. SRP shall implement the Environmental Projects
(“Projects”) described in Appendix A to this Consent Decree in
compliance with the approved plans and schedules for such
Projects and other terms of this Consent Decree. In implementing
the Projects, SRP shall spend no less than $4,000,000 in Project
Dollars. SRP shall not include its own personnel costs in
overseeing the implementation of the Projects as Project Dollars.
80. SRP shall maintain, and present to EPA upon request,
all documents to substantiate the Project Dollars expended to
implement the Projects described in Appendix A, and shall provide
these documents to EPA within thirty (30) days of a request for
the documents.
81. All plans and reports prepared by SRP pursuant to the
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requirements of this Section of the Consent Decree and required
to be submitted to EPA shall be publicly available from SRP
without charge.
82. SRP shall certify, as part of each plan submitted to
EPA for any Project, that SRP is not otherwise required by law to
perform the Project described in the plan, that SRP is unaware of
any other person who is required by law to perform the Project,
and that SRP will not use any Project, or portion thereof, to
satisfy any obligations that it may have under other applicable
requirements of law, including any applicable renewable or energy
efficiency portfolio standards.
83. SRP shall use good faith efforts to secure as much
benefit as possible for the Project Dollars expended, consistent
with the applicable requirements and limits of this Consent
Decree.
84. If SRP elects (where such an election is allowed) to
undertake a Project by contributing funds to another person or
entity that will carry out the Project in lieu of SRP, but not
including SRP’s agents or contractors, that person or
instrumentality must, in writing: (a) identify its legal
authority for accepting such funding; and (b) identify its legal
authority to conduct the Project for which SRP contributes the
funds. Regardless of whether SRP elects (where such election is
allowed) to undertake a Project by itself or to do so by
contributing funds to another person or instrumentality that will
carry out the Project, SRP acknowledges that it will receive
credit for the expenditure of such funds as Project Dollars only
if SRP demonstrates that the funds have been actually spent by
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either SRP or by the person or instrumentality receiving them,
and that such expenditures met all requirements of this Consent
Decree.
85. SRP shall comply with the reporting requirements
described in Appendix A.
86. Within sixty (60) calendar days following the
completion of each Project required under this Consent Decree
(including any applicable periods of demonstration or testing),
SRP shall submit to the United States a report that documents the
date that the Project was completed, SRP’s results of
implementing the Project, including the emission reductions or
other environmental benefits achieved, and the Project Dollars
expended by SRP in implementing the Project.
IX. CIVIL PENALTY
87. Within thirty (30) calendar days after entry of this
Consent Decree, SRP shall pay to the United States a civil
penalty in the amount of $950,000. The civil penalty shall be
paid by Electronic Funds Transfer (“EFT”) to the United States
Department of Justice, in accordance with current EFT procedures,
referencing USAO File Number 2008V00564 and DOJ Case Number 90-5
2-1-09174 and the civil action case name and case number of this
action. The costs of such EFT shall be SRP’s responsibility.
Payment shall be made in accordance with instructions provided to
SRP by the Financial Litigation Unit of the U.S. Attorney’s
Office for the District of Arizona. Any funds received after
2:00 p.m. EDT shall be credited on the next business day. At the
time of payment, SRP shall provide notice of payment, referencing
the USAO File Number, the DOJ Case Number, and the civil action
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case name and case number, to the Department of Justice and to
EPA in accordance with Section XVIII (Notices) of this Consent
Decree.
88. Failure to timely pay the civil penalty shall subject
SRP to interest accruing from the date payment is due until the
date payment is made at the rate prescribed by 28 U.S.C. § 1961,
and shall render SRP liable for all charges, costs, fees, and
penalties established by law for the benefit of a creditor or of
the United States in securing payment.
89. Payments made pursuant to this Section are penalties
within the meaning of Section 162(f) of the Internal Revenue
Code, 26 U.S.C. § 162(f), and are not tax-deductible expenditures
for purposes of federal law.
X. RESOLUTION OF PAST CIVIL CLAIMS
90. Entry of this Consent Decree shall resolve all civil
claims of the United States arising under Part C of Subchapter I
of the Clean Air Act, 42 U.S.C. §§ 7470 to 7492, under the
modification provisions of the Clean Air Act's Standards of
Performance for New Stationary Sources program, 42 U.S.C. § 7411
and 40 C.F.R. § 60.14, and under Subchapter V of the Clean Air
Act, §§ 7661 to 7661f, that arose from modifications that
commenced at CGS prior to the date of lodging of this Consent
Decree.
XI. PERIODIC REPORTING
91. After entry of this Consent Decree, SRP shall submit to
the United States a periodic report, within sixty (60) days after
the end of each half of the calendar year (January through June
and July through December). The report shall include the
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following information:
a. all information necessary to determine compliance with
the requirements of the following Paragraphs of this
Consent Decree: Paragraphs 41 through 46 concerning
NOx emissions and monitoring; Paragraphs 47 through 58
concerning SO2 emissions and monitoring, and the
surrender of SO2 Allowances; and Paragraphs 63 through
66 concerning PM emissions and monitoring;
b. all data recorded by the PM CEMS as required by
Paragraph 71, and all periods of monitor malfunction,
maintenance, and/or repair as provided in Paragraph 67;
c. all information relating to Super-Compliant SO2
Allowances that SRP claims to have generated in
accordance with Paragraph 59 through compliance beyond
the requirements of this Consent Decree;
d. all information relating to the NOx Offset Requirement
pursuant to Paragraphs 98 and 99; and
e. all information indicating that the installation and
commencement of operation for a pollution control
device may be delayed, including the nature and cause
of the delay, and any steps taken by SRP to mitigate
such delay.
92. In any periodic report submitted pursuant to this
Section, SRP may incorporate by reference information previously
submitted under its Title V permitting requirements, provided
that SRP attaches the Title V permit report (or the pertinent
portions of such report) and provides a specific reference to the
provisions of the Title V permit report that are responsive to
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the information required in the periodic report.
93. In addition to the reports required by Paragraph 91, if
SRP violates or deviates from any provision of this Consent
Decree, SRP shall submit to the United States a report on the
violation or deviation within ten (10) business days after SRP
knew or should have known of the event. In the report, SRP shall
explain the cause or causes of the violation or deviation and any
measures taken or to be taken by SRP to cure the reported
violation or deviation or to prevent such violation or deviations
in the future. If at any time, the provisions of this Consent
Decree are included in Title V Permits, consistent with the
requirements for such inclusion in this Consent Decree, then the
deviation reports required under applicable Title V regulations
shall be deemed to satisfy all the requirements of this
Paragraph.
94. Each SRP report shall be signed by either SRP’s Manager
of Environmental Services or the Plant Manager at CGS, and shall
contain the following certification:
This information was prepared either by me or under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my evaluation, or the direction and my inquiry of the person(s) who manage the system, or the person(s) directly responsible for gathering the information, I hereby certify under penalty of law that, to the best of my knowledge and belief, this information is true, accurate, and complete. I understand that there are significant penalties for submitting false, inaccurate, or incomplete information to the United States.
95. If any SO2 Allowances are surrendered to any non-profit
third party pursuant to Section V, the non-profit third party’s
certification shall be signed by a managing officer of the non
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profit third party and shall contain the following language:
I certify under penalty of law that _____________ [name of non-profit third party] will not sell, trade, or otherwise exchange any of the allowances and will not use any of the allowances to meet any obligation imposed by any environmental law. I understand that there are significant penalties for making misrepresentations to or misleading the United States.
XII. REVIEW AND APPROVAL OF SUBMITTALS
96. SRP shall submit each plan, report, or other submission
required by this Consent Decree to EPA whenever such a document
is required to be submitted for review or approval pursuant to
this Consent Decree. EPA may approve the submittal or decline to
approve it and provide written comments explaining the bases for
declining such approval as soon as reasonably practicable.
Within sixty (60) days of receiving written comments from EPA,
SRP shall either: (a) revise the submittal consistent with the
written comments and provide the revised submittal to EPA; or (b)
submit the matter for dispute resolution, including the period of
informal negotiations, under Section XV (Dispute Resolution) of
this Consent Decree.
97. Upon receipt of EPA’s final approval of the submittal,
or upon completion of the submittal pursuant to dispute
resolution, SRP shall implement the approved submittal in
accordance with the schedule specified therein or another EPA-
approved schedule.
XIII. STIPULATED PENALTIES
98. For any failure by SRP to comply with the terms of this
Consent Decree, and subject to the provisions of Sections XIV
(Force Majeure) and XV (Dispute Resolution), and except as
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provided in Paragraph 99, SRP shall pay, within thirty (30) days
after receipt of written demand to SRP by the United States, the
following stipulated penalties to the United States:
Consent Decree Violation Stipulated Penalty
a. Failure to pay the civil penalty as specified in Section IX (Civil Penalty) of this Consent Decree
$10,000 per day
b. Failure to comply with any applicable 30-Day Rolling Average NOx Emission Rate, 30-Day Rolling Average SO2 Emission Rate or 30-Day Rolling Average SO2 Removal Efficiency
$2,500 per day per violation where the violation is less than 5% in excess of the lb/mmBtu limits, or less than 0.25% below the removal efficiency requirement
$5,000 per day per violation where the violation is equal to or greater than 5% but less than 10% in excess of the lb/mmBtu limits, or equal to or greater than 0.25% but less than 0.50% below the removal efficiency requirement
$10,000 per day per violation where the violation is equal to or greater than 10% in excess of the lb/mmBtu limits, or greater than 0.50% below the removal efficiency requirement
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c. Failure to comply with the applicable 365-Day Plant-Wide Rolling NOx Tonnage Limitation established by this Consent Decree
$200,000 for the first 365-Day Plant-Wide Rolling NOx Tonnage Limitation violation, plus $5,000 for each subsequent 365-Day Plant-Wide Rolling NOx Tonnage Limitation violation that includes any day in a previously-assessed 365-Day Plant-Wide Rolling NOx Tonnage Limitation violation, plus offset NOx emissions in an amount that is at least equal to the number of tons by which the 365-Day Plant-Wide Rolling NOx Tonnage Limitation was exceeded, in accordance with the requirements of Paragraph 99, below
d. Failure to install, commence operation, or continue operation of a NOx, SO2, or PM control device on either Unit 1 or Unit 2, as required under this Consent Decree
$10,000 per day per violation during the first 30 days, $27,500 per day per violation thereafter
e. Failure to install or operate CEMS as required in this Consent Decree
$1,000 per day per violation
f. Failure to apply for any permit required by Section XVI (Permits)
$1,000 per day per violation
g. Failure to timely submit, modify, or implement, as approved, the reports, plans, studies, analyses, protocols, or other submittals required by this Consent Decree
$750 per day per violation during the first 10 days, $1,000 per day per violation thereafter
h. Failure to surrender SO2 Allowances as required by Paragraphs 52 through 55, 57
(a) $27,500 per day plus (b) $1,000 per SO2 Allowance not surrendered
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i. Failure to demonstrate the third-party surrender of an SO2 Allowance in accordance with Paragraph 56
$2,500 per day per violation
j. Failure to undertake and complete any of the Environmental Projects in compliance with Section VIII (Environmental Projects) of this Consent Decree
$1,000 per day per violation during the first 30 days, $5,000 per day per violation thereafter
k. Any other violation of this Consent Decree
$1,000 per day per violation
99. NOx Offset Requirements.
a. No later than ninety (90) days following written demand
by the United States for stipulated penalties pursuant to
Paragraph 98.c, SRP shall submit a plan pursuant to Section XII
(Review and Approval of Submittals), to obtain actual emission
reductions of NOx from sources other than CGS in Arizona,
Colorado, New Mexico, or Utah to offset excess NOx emissions as
required by Paragraph 98.c.
b. Such plan shall describe the manner in which SRP will
obtain the required NOx emission reductions, and shall ensure
that the total tons of NOx emissions that exceeded the 365-Day
Plant-Wide Rolling NOx Tonnage Limitation are offset, no later
than three (3) years from the date the plan is approved pursuant
to Section XII (Review and Approval of Submittals), by an amount
of equal or greater actual NOx emission reductions from the
proposed source(s).
c. SRP shall implement the project(s) in the approved plan
in a manner which ensures that the offsetting NOx emissions are
obtained no later than three (3) years from the date the plan is
approved pursuant to Section XII (Review and Approval of
Submittals). In the next report submitted to EPA pursuant to
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Section XI (Periodic Reporting)following three (3) years from the
date the plan is approved, SRP shall provide documentation to
demonstrate that it fully and timely obtained the offsetting NOx
emission reductions in accordance with the approved plan.
d. NOx emission reductions required by the Clean Air Act,
its implementing regulations, or a state implementation plan
shall not be approved as emission reductions to offset NOx
emissions pursuant to Paragraph 98.c. EPA will apply Clean Air
Act § 173(c), 40 C.F.R. § 51.165, and Appendix S to Part 51 for
purposes of determining whether to approve the proposed plan.
100. Violations of any limit based on a 30-day rolling
average constitutes thirty (30) days of violation but where such
a violation (for the same pollutant and from the same Unit)
recurs within periods less than thirty (30) days, SRP shall not
be obligated to pay a daily stipulated penalty for any day of the
recurrence for which a stipulated penalty has already been paid.
101. All stipulated penalties shall begin to accrue on the
day after the performance is due or on the day a violation
occurs, whichever is applicable, and shall continue to accrue
until performance is satisfactorily completed or until the
violation ceases, whichever is applicable. Nothing in this
Consent Decree shall prevent the simultaneous accrual of separate
stipulated penalties for separate violations of this Consent
Decree.
102. SRP shall pay all stipulated penalties to the United
States within thirty (30) days of receipt of written demand to
SRP from the United States, and shall continue to make such
payments every thirty (30) days thereafter until the violation(s)
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no longer continues, unless SRP elects within twenty (20) days of
receipt of written demand to SRP from the United States to
dispute the accrual of stipulated penalties in accordance with
the provisions in Section XV (Dispute Resolution) of this Consent
Decree.
103. Stipulated penalties shall continue to accrue as
provided in accordance with Paragraph 101 during any dispute,
with interest on accrued stipulated penalties payable and
calculated at the rate established by the Secretary of the
Treasury, pursuant to 28 U.S.C. § 1961, but need not be paid
until the following:
a. If the dispute is resolved by agreement, or by a
decision of the United States pursuant to Section XV
(Dispute Resolution) of this Consent Decree that is not
appealed to the Court, accrued stipulated penalties
agreed or determined to be owing, together with accrued
interest, shall be paid within thirty (30) days of the
effective date of the agreement or of the receipt of
the United States’s decision;
b. If the dispute is appealed to the Court and the United
States prevails in whole or in part, SRP shall, within
thirty (30) days of receipt of the Court’s decision or
order, pay all accrued stipulated penalties determined
by the Court to be owing, together with interest
accrued on such penalties determined by the Court to be
owing, except as provided in Subparagraph c, below;
c. If the Court’s decision is appealed by either Party,
SRP shall, within fifteen (15) days of receipt of the
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final appellate court decision, pay all accrued
stipulated penalties determined to be owing, together
with interest accrued on such stipulated penalties
determined to be owing by the appellate court.
Notwithstanding any other provision of this Consent Decree, the
accrued stipulated penalties agreed by the United States and SRP,
or determined by the United States through Dispute Resolution, to
be owing may be less than the stipulated penalty amounts set
forth in Paragraph 98.
104. All stipulated penalties shall be paid in the manner
set forth in Section IX (Civil Penalty) of this Consent Decree.
105. Should SRP fail to pay stipulated penalties in
compliance with the terms of this Consent Decree, the United
States shall be entitled to collect interest on such penalties,
as provided for in 28 U.S.C. § 1961.
106. The stipulated penalties provided for in this Consent
Decree shall be in addition to any other rights, remedies, or
sanctions available to the United States by reason of SRP’s
failure to comply with any requirement of this Consent Decree or
applicable law, except that for any violation of the Act for
which this Consent Decree provides for payment of a stipulated
penalty, SRP shall be allowed a credit for stipulated penalties
paid against any statutory penalties also imposed for such
violation.
107. If either of the Units exceeds an applicable emission
limitation set forth in this Consent Decree due to malfunction,
SRP has an Affirmative Defense to stipulated penalties under this
Consent Decree, if SRP has complied with the reporting
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requirements of Paragraphs 111 and 112 and has demonstrated all
of the following:
a. The excess emissions resulted from a sudden and
unavoidable breakdown of process equipment or air
pollution control equipment beyond the reasonable
control of SRP;
b. The air pollution control equipment, process equipment,
or processes were at all times maintained and operated
in a manner consistent with good practice for
minimizing emissions;
c. If repairs were required, the repairs were made in an
expeditious fashion when the applicable emission
limitations were being exceeded. Off-shift labor and
overtime were utilized where practicable to ensure that
the repairs were made as expeditiously as possible. If
off-shift labor and overtime were not utilized, SRP
satisfactorily demonstrated that the measures were
impracticable;
d. The amount and duration of the excess
emissions(including any bypass operation) were
minimized to the maximum extent practicable during
periods of such emissions;
e. All reasonable steps were taken to minimize the impact
of the excess emissions on ambient air quality;
f. The excess emissions were not part of a recurring
pattern indicative of inadequate design, operation, or
maintenance;
g. During the period of excess emissions there were no
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exceedances of the relevant National Ambient Air
Quality Standards that could be attributed to the
emission exceedances at CGS;
h. The excess emissions did not stem from any activity or
event that could have been foreseen and avoided, or
planned, and could not have been avoided by better
operations and maintenance practices;
i. All emissions monitoring systems were kept in operation
if at all practicable; and
j. SRP’s actions in response to the excess emissions were
documented by contemporaneous records.
108. If either of the Units exceeds an applicable emission
limitation set forth in this Consent Decree due to startup or
shutdown, SRP has an Affirmative Defense to stipulated penalties
under this Consent Decree, if SRP has complied with the reporting
requirements of Paragraphs 111 and 112 and has demonstrated all
of the following:
a. The excess emissions could not have been prevented
through careful and prudent planning and design;
b. If the excess emissions were the result of a bypass of
control equipment, the bypass was unavoidable to
prevent loss of life, personal injury, or severe damage
to air pollution control equipment, production
equipment, or other property;
c. The air pollution control equipment, process equipment,
or processes were at all times maintained and operated
in a manner consistent with good practice for
minimizing emissions;
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d. The amount and duration of the excess emissions
(including any bypass operation) were minimized to the
maximum extent practicable during periods of such
emissions;
e. All reasonable steps were taken to minimize the impact
of the excess emissions on ambient air quality;
f. During the period of excess emissions there were no
exceedances of the relevant National Ambient Air
Quality Standards that could be attributed to the
emission exceedances at CGS;
g. All emissions monitoring systems were kept in operation
if at all practicable; and
h. SRP’s actions in response to the excess emissions were
documented by contemporaneous records.
109. If excess emissions occur due to a malfunction during
routine startup and shutdown, then those instances shall be
treated as other malfunctions subject to Paragraph 107.
110. If excess emissions occur due to a malfunction during
scheduled maintenance, then those instances shall be treated as
other malfunctions subject to Paragraph 107.
111. For an Affirmative Defense under Paragraphs 107 or 108,
SRP shall demonstrate, through submission of the data and
information under the reporting provisions of this section, that
all reasonable and practicable measures within SRP’s control were
implemented to prevent the occurrence of the excess emissions.
112. SRP shall provide notice to the United States in
writing of SRP’s intent to assert an Affirmative Defense for
malfunction, startup, or shutdown under Paragraphs 107 or 108 as
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soon as practicable, but in no event later than twenty-one (21)
calendar days following the date of the malfunction, startup or
shutdown. This notice shall be submitted to EPA pursuant to the
provisions of Section XVIII (Notices). The notice shall contain:
a. The identity of each stack or other emission point
where the excess emissions occurred;
b. The magnitude of the excess emissions expressed in the
units of the applicable emission limitation and the
operating data and calculations used in determining the
magnitude of the excess emissions;
c. The time and duration or expected duration of the
excess emissions;
d. The identity of the equipment from which the excess
emissions emanated;
e. The nature and cause of the emissions;
f. The steps taken, if the excess emissions were the
result of a malfunction, to remedy the malfunction and
the steps taken or planned to prevent the recurrence of
the malfunctions;
g. The steps that were or are being taken to limit the
excess emissions; and
h. If the source’s permit contains procedures governing
source operation during periods of startup or
malfunction and the excess emissions resulted from
startup or malfunction, a list of the steps taken to
comply with the permit procedures.
113. A malfunction, startup, or shutdown shall not
constitute a Force Majeure Event unless the malfunction, startup,
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or shutdown also meets the definition of a Force Majeure Event,
as provided in Section XIV (Force Majeure).
XIV. FORCE MAJEURE
114. For purposes of this Consent Decree, a “Force Majeure
Event” shall mean an event that has been or will be caused by
circumstances beyond the control of SRP, its contractors, or any
entity controlled by SRP that delays compliance with any
provision of this Consent Decree or otherwise causes a violation
of any provision of this Consent Decree despite SRP’s best
efforts to fulfill the obligation. “Best efforts to fulfill the
obligation” include using the best efforts to anticipate any
potential Force Majeure Event and to address the effects of any
such event (a) as it is occurring and (b) after it has occurred,
such that the delay or violation is minimized to the greatest
extent possible.
115. Notice of Force Majeure Events. If any event occurs or
has occurred that may delay compliance with or otherwise cause a
violation of any obligation under this Consent Decree, as to
which SRP intends to assert a claim of Force Majeure, SRP shall
notify the United States in writing as soon as practicable, but
in no event later than twenty-one (21) calendar days following
the date SRP first knew, or by the exercise of due diligence
should have known, that the event caused or may cause such delay
or violation. In this notice, SRP shall reference this Paragraph
of this Consent Decree and describe the anticipated length of
time that the delay or violation may persist, the cause or causes
of the delay or violation, all measures taken or to be taken by
SRP to prevent or minimize the delay or violation, the schedule
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by which SRP proposes to implement those measures, and SRP’s
rationale for attributing a delay or violation to a Force Majeure
Event. SRP shall adopt all reasonable measures to avoid or
minimize such delays or violations. SRP shall be deemed to know
of any circumstance which SRP, its contractors, or any entity
controlled by SRP knew or should have known.
116. Failure to Give Notice. If SRP fails to comply with
the notice requirements of this Section, the United States may
void SRP’s claim for Force Majeure as to the specific event for
which SRP has failed to comply with such notice requirement.
117. United States’s Response. The United States shall
notify SRP in writing regarding SRP’s claim of Force Majeure
within twenty (20) business days of receipt of the notice
provided under Paragraph 115. If the United States agrees that a
delay in performance has been or will be caused by a Force
Majeure Event, the United States and SRP shall stipulate to an
extension of deadline(s) for performance of the affected
compliance requirement(s) by a period equal to the delay actually
caused by the event. In such circumstances, an appropriate
modification shall be made pursuant to Section XXII
(Modification) of this Consent Decree.
118. Disagreement. If the United States does not accept
SRP’s claim of Force Majeure, or if the United States and SRP
cannot agree on the length of the delay actually caused by the
Force Majeure Event, the matter shall be resolved in accordance
with Section XV (Dispute Resolution) of this Consent Decree.
119. Burden of Proof. In any dispute regarding Force
Majeure, SRP shall bear the burden of proving that any delay in
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performance or any other violation of any requirement of this
Consent Decree was caused by or will be caused by a Force Majeure
Event. SRP shall also bear the burden of proving that SRP gave
the notice required by this Section and the burden of proving the
anticipated duration and extent of any delay(s) attributable to a
Force Majeure Event. An extension of one compliance date based
on a particular event may, but will not necessarily, result in an
extension of a subsequent compliance date.
120. Events Excluded. Unanticipated or increased costs or
expenses associated with the performance of SRP’s obligations
under this Consent Decree shall not constitute a Force Majeure
Event.
121. Potential Force Majeure Events. The Parties agree
that, depending upon the circumstances related to an event and
SRP’s response to such circumstances, the kinds of events listed
below are among those that could qualify as Force Majeure Events
within the meaning of this Section: construction, labor, or
equipment delays; malfunction of a Unit or emission control
device; unanticipated coal supply or pollution control reagent
delivery interruptions; acts of God; acts of war or terrorism;
and orders by a government official, government agency, other
regulatory authority, or a regional transmission organization,
acting under and authorized by applicable law, that directs SRP
to supply electricity in response to a system-wide (state-wide or
regional) emergency. Depending upon the circumstances and SRP’s
response to such circumstances, failure of a permitting authority
to issue a necessary permit in a timely fashion may constitute a
Force Majeure Event where the failure of the permitting authority
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to act is beyond the control of SRP and SRP has taken all steps
available to it to obtain the necessary permit, including, but
not limited to: submitting a complete permit application;
responding to requests for additional information by the
permitting authority in a timely fashion; and accepting lawful
permit terms and conditions after expeditiously exhausting any
legal rights to appeal terms and conditions imposed by the
permitting authority.
122. As part of the resolution of any matter submitted to
this Court under Section XV (Dispute Resolution) regarding a
claim of Force Majeure, the United States and SRP by agreement,
or this Court by order, may in appropriate circumstances extend
or modify the schedule for completion of work under this Consent
Decree to account for the delay in the work that occurred as a
result of any delay agreed to by the United States or approved by
the Court. SRP shall be liable for stipulated penalties for its
failure thereafter to complete the work in accordance with the
extended or modified schedule (provided that SRP shall not be
precluded from making a further claim of Force Majeure with
regard to meeting any such extended or modified schedule).
XV. DISPUTE RESOLUTION
123. The dispute resolution procedure provided by this
Section shall be available to resolve all disputes arising under
this Consent Decree, provided that the Party invoking such
procedure has first made a good faith attempt to resolve the
matter with the other Party.
124. The dispute resolution procedure required herein shall
be invoked by one Party giving written notice to the other Party
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advising of a dispute pursuant to this Section. The notice shall
describe the nature of the dispute and shall state the noticing
Party’s position with regard to such dispute. The Party
receiving such a notice shall acknowledge receipt of the notice,
and the Parties in dispute shall expeditiously schedule a meeting
to discuss the dispute informally not later than fourteen (14)
days following receipt of such notice.
125. Disputes submitted to dispute resolution under this
Section shall, in the first instance, be the subject of informal
negotiations between the Parties. Such period of informal
negotiations shall not extend beyond thirty (30) calendar days
from the date of the first meeting between the Parties’
representatives unless they agree in writing to shorten or extend
this period.
126. If the Parties are unable to reach agreement during the
informal negotiation period, the United States shall provide SRP
with a written summary of its position regarding the dispute.
The written position provided by the United States shall be
considered binding unless, within forty-five (45) calendar days
thereafter, SRP seeks judicial resolution of the dispute by
filing a petition with this Court. If SRP seeks judicial
resolution, the United States’s written summary shall be deemed
its initial filing with this Court regarding the dispute. The
United States may submit a response to the petition within forty-
five (45) calendar days of filing.
127. The time periods set out in this Section may be
shortened or lengthened upon motion to the Court of one of the
Parties to the dispute, explaining the Party’s basis for seeking
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such a scheduling modification.
128. This Court shall not draw any inferences nor establish
any presumptions adverse to either Party as a result of
invocation of this Section or the Parties’ inability to reach
agreement.
129. As part of the resolution of any dispute under this
Section, in appropriate circumstances the Parties may agree, or
this Court may order, an extension or modification of the
schedule for the completion of the activities required under this
Consent Decree to account for the delay that occurred as a result
of dispute resolution. SRP shall be liable for stipulated
penalties for its failure thereafter to complete the work in
accordance with the extended or modified schedule, provided that
SRP shall not be precluded from asserting that a Force Majeure
Event has caused or may cause a delay in complying with the
extended or modified schedule.
130. The Court shall decide all disputes pursuant to
applicable principles of law for resolving such disputes. In
their filings with the Court under Paragraph 126, the Parties
shall state their respective positions as to the applicable
standard of law for resolving the particular dispute.
XVI. PERMITS
131. Unless expressly stated otherwise in this Consent
Decree, in any instance where otherwise applicable law or this
Consent Decree requires SRP to secure a permit to authorize
construction or operation of any device, including all
preconstruction, construction, and operating permits required
under State law, SRP shall make such application in a timely
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manner. The United States will use its best efforts to
expeditiously fulfill its role in reviewing all permit
applications submitted by SRP in order to meet the requirements
of this Consent Decree.
132. When permits are required, SRP shall complete and
submit applications for such permits to Arizona DEQ to allow
sufficient time for all legally required processing and review of
the permit request, including requests for additional information
by Arizona DEQ. Any failure by SRP to submit a timely permit
application for Unit 1 and/or Unit 2 shall bar any use by SRP of
Section XIV (Force Majeure) of this Consent Decree, where a Force
Majeure claim is based on permitting delays.
133. Notwithstanding the reference to SRP’s Title V permit
for CGS in this Consent Decree, the enforcement of that permit
shall be in accordance with its own terms and the Act. SRP’s
Title V permit for CGS shall not be enforceable under this
Consent Decree, although any term or limit established by or
under this Consent Decree shall be enforceable under this Consent
Decree regardless of whether such term has or will become part of
a Title V permit, subject to the terms of Section XXVI
(Conditional Termination of Enforcement Under Consent Decree) of
this Consent Decree.
134. Within one hundred eighty (180) days after entry of
this Consent Decree, SRP shall amend any applicable Title V
permit application, or apply for amendments of its Title V
permit, to include a schedule for all unit-specific and plant-
specific performance, operational, maintenance, and control
technology requirements established by this Consent Decree
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including, but not limited to, Emission Rates, Removal
Efficiencies, the 365-day Plant-Wide Rolling NOx Tonnage
Limitation, and the requirements pertaining to the surrender of
SO2 Allowances.
135. Within one (1) year from the commencement of operation
of the final pollution control device to be installed on a Unit
under this Consent Decree, SRP shall either apply to permanently
include the requirements and limitations enumerated in this
Consent Decree into a federally enforceable permit or request a
site-specific amendment to the Arizona SIP to include the
requirements and limitations enumerated in this Consent Decree.
The permit or Arizona SIP amendment shall require compliance with
the following: (a) any applicable Emission Rate or Removal
Efficiency, (b) the 365-day Plant-Wide Rolling NOx Tonnage
Limitation, and (c) the SO2 Allowance surrender requirements set
forth in this Consent Decree. For purposes of this Consent
Decree, the federally enforceable permit must be issued by
Arizona DEQ under its authority to issue permits pursuant to the
Arizona SIP and not solely under Arizona's authority to issue
permits pursuant to its Title V permit program.
136. SRP shall provide the United States with a copy of
each application for a federally enforceable permit or Arizona
SIP amendment, as well as a copy of any permit proposed as a
result of such application, to allow for timely participation in
any public comment opportunity.
137. If SRP sells or transfers to an entity unrelated to
SRP (“Third Party Purchaser”) part or all of its Ownership
Interest covered under this Consent Decree, SRP shall comply with
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the requirements of Paragraphs 145 through 148 of this Consent
Decree with regard to that Ownership Interest prior to any such
sale or transfer unless, following any such sale or transfer, SRP
remains the holder of the permit for such facility.
XVII. INFORMATION COLLECTION AND RETENTION
138. Any authorized representative of the United States,
including its attorneys, contractors, and consultants, upon
presentation of credentials, shall have a right of entry upon the
premises of CGS Unit 1 and Unit 2 at any reasonable time for the
purpose of:
a. monitoring the progress of activities required under
this Consent Decree;
b. verifying any data or information submitted to the
United States in accordance with the terms of this
Consent Decree;
c. obtaining samples and, upon request, splits of any
samples taken by SRP or its representatives,
contractors, or consultants; and
d. assessing SRP’s compliance with this Consent Decree.
139. SRP shall retain, and instruct its contractors and
agents to preserve, all non-identical copies of all records and
documents (including records and documents in electronic form)
now in its or its contractors’ or agents’ possession or control,
and that directly relate to SRP’s performance of its obligations
under this Consent Decree for the following periods: (a) until
December 31, 2020 for records concerning physical or operational
changes undertaken in accordance with Section IV (NOx Emission
Reductions and Controls) and Section V (SO2 Emission Reductions
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and Controls); and (b) until December 31, 2017 for all other
records. This record retention requirement shall apply
regardless of any corporate document retention policy to the
contrary.
140. All information and documents submitted by SRP
pursuant to this Consent Decree shall be subject to any requests
under applicable law providing public disclosure of documents
unless (a) the information and documents are subject to legal
privileges or protection or (b) SRP claims and substantiates in
accordance with 40 C.F.R. Part 2 that the information and
documents contain confidential business information.
141. Nothing in this Consent Decree shall limit the
authority of the EPA to conduct tests and inspections at SRP’s
facilities under Section 114 of the Act, 42 U.S.C. § 7414, or any
other applicable federal laws, regulations, or permits.
XVIII. NOTICES
142. Unless otherwise provided herein, whenever
notifications, submissions, or communications are required by
this Consent Decree, they shall be made in writing and addressed
as follows:
As to the United States of America:
Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611, Ben Franklin Station Washington, DC 20044-7611 DJ# 90-5-2-1-09174
and
Director, Air Enforcement Division Office of Enforcement and Compliance Assurance U.S. Environmental Protection Agency Ariel Rios Building [2242A]
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1200 Pennsylvania Avenue, N.W. Washington, DC 20460
and
Director, Air Division U.S. EPA Region 9 75 Hawthorne Street [Air-1] San Francisco, CA 94105
As to SRP:
Manager, Environmental Services Salt River Project Environmental, PAB352 1521 N. Project Dr. Tempe, AZ 85281
and
Corporate Counsel Salt River Project Legal Services Department, PAB207 1521 N. Project Dr. Tempe, AZ 85281
143. All notifications, communications, or submissions made
pursuant to this Section shall be sent either by: (a) overnight
mail or overnight delivery service with signature required for
delivery, or (b) certified or registered mail, return receipt
requested. All notifications, communications, and transmissions
(a) sent by overnight, certified, or registered mail shall be
deemed submitted on the date they are postmarked, or (b) sent by
overnight delivery service shall be deemed submitted on the date
they are delivered to the delivery service.
144. Either Party may change either the notice recipient or
the address for providing notices to it by serving the other
Party with a notice setting forth such new notice recipient or
address.
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XIX. SALES OR TRANSFERS OF OWNERSHIP INTERESTS
145. If SRP proposes to sell or transfer an Ownership
Interest to another entity (a “Third Party Purchaser”), SRP shall
advise the Third Party Purchaser in writing of the existence of
this Consent Decree prior to such sale or transfer, and shall
send a copy of such written notification to the United States
pursuant to Section XVIII (Notices) of this Consent Decree at
least sixty (60) days before such proposed sale or transfer.
146. No sale or transfer of an Ownership Interest shall
take place before the Third Party Purchaser and the United States
have executed, and the Court has approved, a modification
pursuant to Section XXII (Modification) of this Consent Decree
making the Third Party Purchaser a party to this Consent Decree
and jointly and severally liable with SRP for all the
requirements of this Consent Decree that may be applicable to the
transferred or purchased Ownership Interests.
147. This Consent Decree shall not be construed to impede
the transfer of any Ownership Interests between SRP and any Third
Party Purchaser so long as the requirements of this Consent
Decree are met. This Consent Decree shall not be construed to
prohibit a contractual allocation – as between SRP and any Third
Party Purchaser of Ownership Interests – of the burdens of
compliance with this Consent Decree, provided that both SRP and
such Third Party Purchaser shall remain jointly and severally
liable to the United States for the obligations of this Consent
Decree applicable to the transferred or purchased Ownership
Interests.
148. If the United States agrees, the United States, SRP,
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and the Third Party Purchaser that has become a party to this
Consent Decree pursuant to Paragraph 146, may execute a
modification that relieves SRP of its liability under this
Consent Decree for, and makes the Third Party Purchaser liable
for, all obligations and liabilities applicable to the purchased
or transferred Ownership Interests. Notwithstanding the
foregoing, however, SRP may not assign, and may not be released
from, any obligation under this Consent Decree that is not
specific to the purchased or transferred Ownership Interests,
including the obligations set forth in Sections VIII
(Environmental Projects) and IX (Civil Penalty). SRP may propose
and the United States may agree to restrict the scope of the
joint and several liability of any purchaser or transferee for
any obligations of this Consent Decree that are not specific to
the transferred or purchased Ownership Interests, to the extent
such obligations may be adequately separated in an enforceable
manner.
XX. EFFECTIVE DATE
149. The effective date of this Consent Decree shall be the
date upon which this Consent Decree is entered by the Court.
XXI. RETENTION OF JURISDICTION
150. The Court shall retain jurisdiction of this case after
entry of this Consent Decree to enforce compliance with the terms
and conditions of this Consent Decree and to take any action
necessary or appropriate for its interpretation, construction,
execution, modification, or adjudication of disputes. During the
term of this Consent Decree, either Party to this Consent Decree
may apply to the Court for any relief necessary to construe or
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effectuate this Consent Decree.
XXII. MODIFICATION
151. The terms of this Consent Decree may be modified only
by a subsequent written agreement signed by the United States and
SRP. Where the modification constitutes a material change to any
term of this Consent Decree, it shall be effective only upon
approval by the Court.
XXIII. GENERAL PROVISIONS
152. This Consent Decree is not a permit. Compliance with
the terms of this Consent Decree does not guarantee compliance
with all applicable federal, state, or local laws or regulations.
The emission rates and removal efficiencies set forth herein do
not relieve SRP from any obligation to comply with other state
and federal requirements under the Clean Air Act, including SRP’s
obligation to satisfy any State modeling requirements set forth
in the Arizona SIP.
153. This Consent Decree does not apply to any claim(s) of
alleged criminal liability.
154. In any subsequent administrative or judicial action
initiated by the United States for injunctive relief or civil
penalties relating to CGS as covered by this Consent Decree, SRP
shall not assert any defense or claim based upon principles of
waiver, res judicata, collateral estoppel, issue preclusion,
claim preclusion, or claim splitting, or any other defense based
upon the contention that the claims raised by the United States
in the subsequent proceeding were brought, or should have been
brought, in the instant case; provided, however, that nothing in
this Paragraph is intended to affect the validity of Section X
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(Resolution of Past Civil Claims).
155. Except as specifically provided by this Consent
Decree, nothing in this Consent Decree shall relieve SRP of its
obligation to comply with all applicable federal, state, and
local laws and regulations. Subject to the provisions in Section
X (Resolution of Past Civil Claims), nothing contained in this
Consent Decree shall be construed to prevent or limit the rights
of the United States to obtain penalties or injunctive relief
under the Act or other federal, state, or local statutes,
regulations, or permits.
156. Each limit and/or other requirement established by or
under this Consent Decree is a separate, independent requirement.
157. Performance standards, emissions limits, and other
quantitative standards set by or under this Consent Decree must
be met to the number of significant digits in which the standard
or limit is expressed. For example, an Emission Rate of 0.100 is
not met if the actual Emission Rate is 0.101. SRP shall round the
fourth significant digit to the nearest third significant digit,
or the third significant digit to the nearest second significant
digit, depending upon whether the limit is expressed to three or
two significant digits. For example, if an actual Emission Rate
is 0.1004, that shall be reported as 0.100, and shall be in
compliance with an Emission Rate of 0.100, and if an actual
Emission Rate is 0.1005, that shall be reported as 0.101, and
shall not be in compliance with an Emission Rate of 0.100.
Removal Efficiency for SO2 is expressed to 3 significant figures
- 95.0%. The 95.0% Removal Efficiency requirement is met if, for
example, the calculated Removal Efficiency is 94.95%. However,
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95.0% Removal Efficiency requirement is not met if, for example,
the calculated Removal Efficiency is 94.94%. SRP shall report
data to the number of significant digits in which the standard or
limit is expressed.
158. This Consent Decree does not limit, enlarge, or affect
the rights of either Party to this Consent Decree as against any
third parties.
159. This Consent Decree constitutes the final, complete
and exclusive agreement and understanding between the Parties
with respect to the settlement embodied in this Consent Decree,
and supercedes all prior agreements and understandings between
the Parties related to the subject matter herein. No document,
representation, inducement, agreement, understanding, or promise
constitutes any part of this Consent Decree or the settlement it
represents, nor shall they be used in construing the terms of
this Consent Decree.
160. Each Party to this action shall bear its own costs and
attorneys' fees.
XXIV. SIGNATORIES AND SERVICE
161. Each undersigned representative of the Parties
certifies that he or she is fully authorized to enter into the
terms and conditions of this Consent Decree and to execute and
legally bind to this document the Party he or she represents.
162. This Consent Decree may be signed in counterparts, and
such counterpart signature pages shall be given full force and
effect.
163. Each Party hereby agrees to accept service of process
by mail with respect to all matters arising under or relating to
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this Consent Decree and to waive the formal service requirements
set forth in Rule 4 of the Federal Rules of Civil Procedure and
any applicable Local Rules of this Court including, but not
limited to, service of a summons.
XXV. PUBLIC COMMENT
164. Both Parties agree and acknowledge that final approval
by the United States and entry of this Consent Decree is subject
to the procedures of 28 C.F.R. § 50.7, which provides for notice
of the lodging of this Consent Decree in the Federal Register, an
opportunity for public comment, and the right of the United
States to withdraw or withhold consent if the comments disclose
facts or considerations which indicate that this Consent Decree
is inappropriate, improper, or inadequate. SRP shall not oppose
entry of this Consent Decree by this Court or challenge any
provision of this Consent Decree unless the United States has
notified SRP, in writing, that the United States no longer
supports entry of this Consent Decree.
XXVI. CONDITIONAL TERMINATION OF ENFORCEMENT UNDER CONSENT DECREE
165. Termination as to completed tasks. As soon as SRP
completes a construction project or any other requirement of this
Consent Decree that is not ongoing or recurring, SRP may, by
motion to this Court, seek termination of the provision or
provisions of this Consent Decree that imposed the requirement.
166. Conditional termination of enforcement through this
Consent Decree. Subject to the provisions of Paragraph 167,
after SRP:
a. has successfully completed construction, and has
maintained operation, of all pollution controls as
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required by this Consent Decree for a period of two
years; and
b. has obtained all the final permits required by Section
XVI (Permits) of this Consent Decree covering both Unit
1 and Unit 2 that include as federally enforceable
permit terms, all of the Unit performance and other
requirements specified in this Consent Decree;
then SRP may so certify these facts to the United States and this
Court. If the United States does not object in writing with
specific reasons within forty-five (45) days of receipt of SRP’s
certification, then, for any violations of this Consent Decree
that occur after the filing of notice, the United States shall
pursue enforcement of the requirements contained in the Title V
permit through the applicable Title V permit and/or other
enforcement authorities and not through this Consent Decree.
167. Resort to enforcement under this Consent Decree.
Notwithstanding Paragraph 166, if enforcement of a provision in
this Consent Decree cannot be pursued by the United States under
the applicable Title V permit, or if a requirement of this
Consent Decree was intended to be part of a Title V Permit and
did not become or remain part of such permit, then such
requirement may be enforced under the terms of this Consent
Decree at any time.
XXVII. FINAL JUDGMENT
168. Upon approval and entry of this Consent Decree by the
Court, this Consent Decree shall constitute a final judgment
between the United States and SRP.
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______________________________
______________________________
Signature Page for United States of America v. Salt River ProjectAgricultural Improvement and Power District Consent Decree
FOR THE UNITED STATES DEPARTMENT OF JUSTICE
Respectfully submitted,
RONALD J. TENPAS Assistant Attorney GeneralEnvironment and Natural Resources Division
United States Department of Justice
W. BENJAMIN FISHEROW Deputy ChiefEnvironmental Enforcement Section Environment and Natural Resources Division
P.O. Box 7611 Washington, DC 20044-7611(202) 514-2750
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______________________________
Signature Page for United States of America v. Salt River ProjectAgricultural Improvement and Power District Consent Decree
FOR THE UNITED STATES DEPARTMENT OF JUSTICE
DIANE J. HUMETEWA United States AttorneyDistrict of Arizona
SUE A. KLEIN Assistant United States AttorneyTwo Renaissance Square40 N. Central Avenue, Suite 1200Phoenix, AZ 85004-4408Telephone: (602) 514-7500
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______________________________
_____________________________
______________________________
Signature Page for United States of America v. Salt River ProjectAgricultural Improvement and Power District Consent Decree
FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Respectfully submitted,
GRANTA Y. NAKAYAMA Assistant Administrator Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency
ADAM M. KUSHNER Director, Air Enforcement DivisionOffice of Enforcement and Compliance Assurance
United States Environmental Protection Agency
ILANA S. SALTZBART Attorney-AdvisorUnited States Environmental Protection Agency
1200 Pennsylvania Ave, N.W. (2242A)Washington, DC 20460
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______________________________
_______________________________
Signature Page for United States of America v. Salt River ProjectAgricultural Improvement and Power District Consent Decree
FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Respectfully submitted,
WAYNE NASTRI Regional Administrator, Region 9United States Environmental Protection Agency
ALLAN ZABEL Senior Counsel United States Environmental Protection Agency, Region 9
75 Hawthorne St. (ORC-2)San Francisco, CA 94105
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_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
Signature Page for United States of America v. Salt River ProjectAgricultural Improvement and Power District Consent Decree
FOR SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT
By: _______________________________President / Vice President
(Printed Name)
Attest and Countersign:
Secretary / Assistant Secretary
(Printed Name)
Reviewed by SRP Legal Services Department
(Signed Name)
(Printed Name)
Date:_______________________________
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Appendix A Environmental Projects
In compliance with, and in addition to, the requirements in Section VIII of this Consent Decree (Environmental Projects), SRP shall comply with the requirements of this Appendix to ensure that the benefits of the $4 million in Project Dollars are achieved.
I. Overall Environmental Projects Schedule and Budget
A. Within one hundred twenty (120) days from entry of this Consent Decree, as further described below, SRP shall submit plans to EPA for review and approval for spending the $4 million in Project Dollars specified in this Appendix in accordance with the deadlines established in this Appendix. EPA shall determine, prior to approval, that all Projects are consistent with federal law.
B. SRP may, at its election, consolidate the plans required by this Appendix into a single plan.
C. Beginning one hundred twenty (120) days from entry of this Consent Decree, and continuing annually thereafter until completion of each Project (including any applicable periods of demonstration or testing), SRP shall provide EPA with written reports detailing the progress of each Project, including an accounting of Project Dollars spent to date.
D. As required by Paragraph 86 of the Consent Decree, within sixty (60) days following the completion of each Project required under this Consent Decree (including any applicable periods of demonstration or testing), SRP shall submit to the United States a report that documents the date that the Project was completed, SRP’s results of implementing the Project, including the emission reductions or other environmental benefits achieved, and the Project Dollars expended by SRP in implementing the Project.
E. Upon EPA’s approval of the plans required by this Appendix, SRP shall complete the Environmental Projects according to the approved plans. Nothing in the Consent Decree or this Appendix shall be interpreted to prohibit SRP from completing the Environmental Projects before the deadlines specified in the schedule of an approved plan.
II. Clean Diesel School Bus Retrofit Project
A. Within one hundred twenty (120) days from entry of this Consent Decree, SRP shall submit to EPA for review and approval pursuant to Section XII (Review and Approval of Submittals) of this Consent Decree a plan to retrofit in-service public school bus diesel engines with emission control equipment further described in
Appendix A - 1
this Section, designed to reduce emissions of particulates and/or ozone precursors (the “Clean Diesel School Bus Retrofit Project”) and fund the operation and maintenance of the retrofit equipment for the time-period described below. This Project shall include, where necessary, techniques and infrastructure needed to support such retrofits. SRP shall spend no less than $1.25 million in Project Dollars in performing this Clean Diesel School Bus Retrofit Project. SRP shall complete the installation of the retrofit equipment no later than December 31, 2010, and ensure that the recipients operate and maintain the retrofit equipment from the date of installation through December 31, 2015, by providing funding for operation and maintenance as described in Section II.B.7, below.
B. The plan shall also satisfy the following criteria:
1. Involve public school bus fleets located in the Phoenix metropolitan area (including the City of Phoenix, and the cities and towns in Maricopa County, Pinal County, and Yavapai County).
2. Provide for the retrofit of public school bus diesel engines with EPA or California Air Resources Board (“CARB”) verified emissions control technologies to achieve the greatest measurable mass reductions of particulates and/or ozone precursors for the fleet of school buses in the public school district(s) that participate(s) in this Project. Depending upon the particular EPA or CARB verified emissions control technology selected, the retrofit school bus diesel engines must achieve emission reductions of particulates and/or ozone precursors by 30%-90%, as measured from the pre-retrofit emissions for the particular diesel school bus.
3. Describe the process SRP will use to determine the most appropriate emissions control technology for each particular school bus diesel engine that will achieve the greatest mass reduction of particulates and/or ozone precursors. In making this determination, SRP must take into account the particular operating criteria required for the EPA or CARB verified emissions control technology to achieve the verified emissions reductions.
4. Provide for the retrofit of school bus diesel engines with either: (a) diesel particulate filters or (b) diesel oxidation catalysts and closed crankcase ventilation systems.
5. Describe the process SRP will use to notify public school districts within the geographic area specified in Section II.B.1 that their fleet of school buses may be eligible to participate in the Clean Diesel School Bus Retrofit Project and to solicit their interest in participating in the Project.
Appendix A - 2
6. Describe the process and criteria SRP will use to select the particular public school districts to participate in this Project, consistent with the requirements of this Section.
7. For each of the recipient public school districts, describe the amount of Project Dollars that will cover the costs associated with: (a) purchasing the verified emissions control technology, (b) installation of the verified emissions control technology (including datalogging), (c) training costs associated with repair and maintenance of the verified emissions control technology (including technology cleaning and proper disposal of waste generated from cleaning), and (d) the incremental costs for repair and maintenance of the retrofit equipment from the date of installation through December 31, 2015, including the costs associated with the proper disposal of the waste generated from cleaning the verified emissions control technology. This Project shall not include costs for normal repair or operation of the retrofit school bus.
8. Include a mechanism to ensure that recipients of the retrofit equipment will bind themselves to follow the operating criteria required for the verified emissions control technology to achieve the verified emissions reductions and properly maintain the retrofit equipment installed in connection with the Project for the period beginning on the date the installation is complete through December 31, 2015.
9. Describe the process SRP will use for determining which school buses in a particular public school fleet will be retrofit with the verified emissions control technology, consistent with the criteria specified in Section II.B.2.
10. Ensure that recipient public school district(s), or their funders, do not otherwise have a legal obligation to reduce emissions through the retrofit of school bus diesel engines.
11. For any third party with whom SRP might contract to carry out this Project, establish minimum standards that include prior experience in arranging retrofits, and a record of prior ability to interest and organize fleets, school districts, and community groups to join a clean diesel program.
12. Ensure that the recipient public school district(s) comply with local, state, and federal requirements for the disposal of the waste generated from the verified emissions control technology and follow CARB’s guidance for the proper disposal of such waste.
13. Include a schedule and budget for completing each portion of the Project,
Appendix A - 3
including funding for operation and maintenance of the retrofit equipment through December 31, 2015.
C. In addition to the information required to be included in the report pursuant to Section I.D, above, SRP shall also describe the school districts where it implemented this Project; the particular types of verified emissions control technology (and the number of each type) that it installed pursuant to this Project; the type, year, and horsepower of each retrofit school bus; an estimate of the number of school children effected by this Project, and the basis for this estimate; and an estimate of the emission reductions for each retrofit school bus (using the manufacturer’s estimated reductions for the particular verified emissions control technology), including particulates, hydrocarbons, carbon monoxide, and nitrogen oxides.
D. Upon EPA’s approval of the plan, SRP shall complete the Clean Diesel School Bus Retrofit Project according to the approved plan and schedule.
III. Solar Photovoltaic Project
A. Within one hundred twenty (120) days from entry of this Consent Decree, SRP shall submit to EPA for review and approval pursuant to Section XII (Review and Approval of Submittals) of this Consent Decree a plan to install conventional fixed flat panel solar photovoltaics and associated equipment (“PV System”) on school buildings in Arizona and to fund the maintenance of such PV Systems for a minimum of 10 years following approval of the plan (“PV Project”). SRP shall spend no less than $2.0 million in Project Dollars in performing this PV Project. SRP shall complete the PV System installations no later than December 31, 2010, and shall maintain the PV Systems for a minimum of ten (10) years following approval of the plan.
B. A PV System shall, at a minimum, consist of: (1) the installation of solar panels at a single location producing at least 10 kilowatts direct current; (2) a grid-tied inverter, appropriately sized for the capacity of the solar panels installed at the location; (3) the appropriate solar panel mounting equipment for the particular school selected, i.e., roof mount or ground mount; (4) wiring, conduit, and associated switchgear and metering required for interconnecting the solar generator to the grid; and (5) appropriate software to enable the school students and staff to monitor the output in kilowatt-hours (both before and after the inverter). SRP shall purchase a ten-year service warrantee for each PV System installed pursuant to the PV Project.
C. The plan shall also satisfy the following criteria:
1. Involve two public school districts in the vicinity of Coronado Generating
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Station (e.g., St. Johns, Springerville, Eagar, Show Low) and at least two public school districts in the Phoenix metropolitan area (including the City of Phoenix, and the cities and towns in Maricopa County, Pinal County, and Yavapai County). Specifically, two PV Systems will be installed in the vicinity of Coronado Generating Station and the remainder in the Phoenix metropolitan area.
2. Include a schedule and budget for completing each portion of the PV Project, including installation and maintenance costs for up to ten (10) years following approval of the plan.
3. Describe the process SRP will use to notify public school districts identified in III.C.1, above, that they are eligible to participate in the PV Project and to solicit their interest in participating in the PV Project.
4. Describe the process and criteria SRP will use to select the public school buildings where SRP will install the PV Systems.
5. Identify any person or entity other than SRP that will be involved in the PV Project. SRP shall describe the third party’s role in the Project and the basis for asserting that such entity is able and suited to perform the intended role. For purposes of this Project, third parties shall only include non-profits, state and local agencies, or universities. Any proposed third party must be legally authorized to perform the proposed role and to receive Project Dollars.
D. In addition to the information required to be included in the report pursuant to Section I.D, above, SRP shall also identify the school buildings where the PV Systems were installed, how many total panels, in kilowatts, were installed, the success of the Project in terms of efficiency and kilowatts generated per year, and any lessons learned.
E. Upon EPA’s approval of the plan, SRP shall complete the PV Project according to the approved plan and schedule.
IV. Wood Stove Changeout Project
A. Within one hundred twenty (120) days from entry of this Consent Decree, SRP shall submit to EPA for review and approval pursuant to Section XII (Review and Approval of Submittals) of this Consent Decree a plan to sponsor a wood stove changeout campaign that a state, local, or tribal air pollution control agency (“air pollution control agency) or third-party non-profit will agree to implement in an area that would benefit from reductions of fine particle pollution and/or hazardous air pollutants by replacing pre-1988 wood stoves with EPA-certified wood-stoves
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and/or cleaner burning, more energy-efficient hearth appliances (e.g., wood pellet, gas, or propane stoves) (“Wood Stove Changeout Project”). SRP shall spend no less than $750,000 in Project Dollars in performing this Wood Stove Changeout Project, and shall complete the Project no later than December 31, 2011.
B. The Wood Stove Changeout Project that SRP sponsors shall provide information (including, educational efforts and outreach regarding clean-burning alternatives to pre-1988 wood stoves and proper operation of the hearth appliances) and incentives through rebates, discounts, and in some instances, actual replacement of pre-1988 wood stoves for income-qualified residential homeowners, to encourage residential homeowners to replace their old, higher polluting and less energy efficient wood stoves (pre-1988 wood stoves) with cleaner burning, more energy efficient hearth appliances like wood pellet stoves, EPA-certified wood stoves, gas stoves, or propane stoves.
C. SRP shall sponsor the implementation of the Wood Stove Changeout Project in areas in the vicinity of Coronado Generating Station (e.g., St. Johns, Springerville, Eagar, Show Low) that promise significant environmental benefit from the Wood Stove Changeout Project. In determining the specific areas to implement this Project within the aforementioned geographic area, SRP shall give priority to areas with high amounts of air pollution, especially particle pollution and/or hazardous air pollutants, areas located within a geography and topography that makes it susceptible to high levels of particle pollution, or areas that have a significant number of pre-1988 wood-burning appliances.
D. The air pollution control agency(ies) and/or non-profit(s) that SRP selects shall implement the Wood Stove Changeout Project consistent with the materials available on EPA’s website at http://www.epa.gov/woodstoves/index.html.
E. The plan shall also satisfy the following criteria:
1. Identify the air pollution control agency(ies) and/or non-profit(s) selected to implement the Wood Stove Changeout Project.
2. Describe the schedule and budgetary increments in which SRP shall provide the necessary funding to the air pollution control agency(ies) and/or non-profits(s) to implement the Wood Stove Changeout Project.
3. Ensure that the air pollution control agency(ies) and/or non-profit(s) will implement the Wood Stove Changeout Project in accordance with the requirements of this Appendix, and that the Project Dollars will be used to support the actual replacement of pre-1988 wood stoves currently used as the primary or secondary source of residential heat with a cleaner burning, more energy efficient hearth appliance (i.e., wood pellet stove, EPA-
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certified wood stove, gas stove, or propane stove). SRP shall limit the use of Project Dollars for administrative costs associated with implementation of the program to no greater than 10% of the Project Dollars SRP provides to a specific air pollution control agency and/or non-profit.
4. Describe all of the elements of the Wood Stove Changeout Project that the air pollution control agency(ies) and/or non-profit(s) will implement, including the type and amount of the incentive that will be made available to residential homeowners through the Wood Stove Changeout Project. If SRP proposes to fund the actual replacement of a pre-1988 wood stove for income-qualified residential homeowners, SRP shall describe the number of energy efficient hearth appliances it intends to make available, the cost per unit, and the criteria the air pollution control agency(ies) and/or non-profit(s) will use to determine which residential homeowners should be eligible for actual stove replacement.
5. If applicable, identify any organizations with which the air pollution control agency(ies) and/or non-profit(s) will partner to implement the Project, including such organizations as: the Hearth, Patio, and Barbecue Association of America, the Chimney Safety Institute of America, a local chapter of the American Lung Association, Tribal organizations, individual stove retailers, propane dealers, facilities that will dispose of old stoves so that they cannot be resold or reused, housing assistance agencies, local fire departments, local health organizations, and local green energy organizations.
6. Describe how the air pollution control agency(ies) and/or non-profit(s) will ensure that the pre-1988 wood stoves will be properly recycled or disposed.
F. Upon EPA’s approval of the plan, SRP shall complete the Wood Stove Changeout Project according to the approved plan and schedule.
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